Cumberland Telegraph & Telephone Co. v. Hobart

42 So. 349 | Miss. | 1906

Mayes, J.,

delivered the opinion of the court.

Hobart sued the Cumberland Telegraph and Telephone Company for the sum of $2,000 damages- for wrongfully cutting-out his telephone. The facts in the case are as follows: Hobart resided about a mile and a half from Vicksburg, on what is known as the “Warrenton Road.” He had entered into a contract for a telephone to be put into his residence some years previous to the date at which this suit was brought, and subsequently, his wife having a store, he saw the manager of the- telephone company, and asked him to place a telephone in this store, which, the company did. At the time the company’s servants went out to place the telephone in the storehouse of his wife, Hobart himself was not present, and the telephone company, presenting a contract to he signed, the clerk in the store signed it in 'the name of Mrs. Hobart, so that the telephone company had a contract with Hobart'for the telephone in his residence, and a contract with Mrs. Hobart, signed for her by the clerk, for the telephone in the store. It is stated in the testimony that the telephone company believed that the contract was signed by Hobart, he having spoken to the company about it, and that the charge for rent of the telephone in the store was placed on the books to Hobart, though the mitten contract was in the name of his wife, so far as the store was concerned. About a month after the telephone had been placed in the store, Mrs. Hobart sold the store, and Hobart states that, when the store was sold, he notified the telephone company to take the telephone out of the store. Some time in July, 1905, Hobart was away from home four or five days on his plantation in Louisiana, and returning about the 15th or 16th, he found his residence telephone cut out. He rang up the company’s office and asked what was the matter, and appellant told him he was cut out, and the party that answered the telephone said “they knew all about him, and that his telephone would not be put back on the line.” Hobart had not paid rental for his telephone for the month of June, and on the 15 th or 16 th of July he was cut out. It also seems that there was some $3.10 due on the contract of Mrs. Hobart for the telephone in the store. The next morning Hobart went into Vicksburg and into the manager’s office of the telephone company, tendered- his rental for the month of June, and asked to be put back on the line. This the manager declined to do because the company claimed he owed $3.10 on the store telephone. Hobart told them that he did not owe for the telephone in the store, that it was his wife’s contract; the store belonged to her, and if she owed anything to present her' the bill. He tendered to- them the $2 for the rental for the-month of June due by himself on his residence telephone, and $2 in advance for the next month, and requested reinstatement of the service, but the company declined to accept it because he would not pay the full amount, as it claimed; that is to say, both under his wife’s contract and his own, so that when it declined to. reinstate his telephone it had full knowledge that the $3.10 was the debt of Mrs. Hobart. 'Appellant sent out a lineman, and cut out the telephone, and removed it from Hobart’s residence. Hobart says that when they came to remove the ’phone he tendered them $6, paying in advance for the residence telephone, which they declined to accept. He was without a telephone for three or four months, under these circumstances. Hobart claims to have been damaged in many ways by the removal of the telephone, but that it is difficult to enumerate the exact amount, and the ways in which he was damaged. That he lived outin the country, and that it was an almost indispensable adjunct to his household, and yet difficult to'enumerate in dollars and cents; that when he was in town and- wanted anything, he could telephone. When he wanted to send things-home, he was in the habit of putting them on the car and telephoning some one at the house to meet the car and get the-things; that after the telephone was cut out he could not do this, but had to send a boy; that he suffered inconvenience and annoyance in ways too numerous to name, and too difficult to-put in dollars and cents, and that tire telephone was a necessity to him. He used the telephone on his place in Louisiana, and he used it as a matter of convenience to talk with his home. While he was without the telephone he was taken sick, and suffered great annoyance and inconvenience in not having a telephone in his house; that, to his recollection, he spent $25 to $30 for messengers to send things home; that when he had' long distance-calls several times, he would have to go out at night to his neighbor’s house to talk, and when his family was sick he was-put to much inconvenience, and deprived of the protection ■which the telephone gave him at his house. The case was submitted to the jury on these facts, 'and they awarded damage in the sum of $150. The record clearly shows that there were two distinct contracts, one by Hobart for the telephone in his dwelling, and another contract in the name of Mrs. Hobart for the telephone in her store.

It is attempted to be shown- that the telephone company thought it was making the contract at the store with Hobart, instead of Mrs. Hobart, but that can m'ake no difference, in the decision -of this case, for the reason that the contracts- were separate contracts relating to different properties, and, again, appellant was informed that it was Mrs. Hobart’s contract after appellant had cut out the residence, and, again, the personnel of the party contracted with could make no difference, for the reason that it was bound to put in the telephone in the store at the request of either Mr. or Mrs. Hobart. These contracts were separate and independent contracts, having no relation with each other, and- because of the failure to pay charges on one of the telephones, the telephone company had no right to cut out the other.. In the first place, they were contracts between different parties; in the next place, if this were not true, they were separate contracts -about different properties, and the telephone company could only cut out that telephone for which there had been a default in payment. At the time that Hobart’s telephone was cut out, he was in default on his residence, and- the telephone company had the right to cut him out, after due notice to him, but when he tendered the money properly due on the telephone in his dwelling, it had no right to undertake to coerce payment of the amount -due on the other telephone by refusing to reinstate the service in his house. In the first place, he did not owe it; it was his wife’s, debt. And in the next place, if he had owed it, it' was a separate contract, and appellant could only put an end to the particular contract wherein there-was default. In the ease of Burke v. City of Water Valley, 87 Miss., 732 (s.c., 40 South. Rep., 821), Whitfield, C. J., says: “If gas is supplied to the owner of different houses under separate contracts, failure to pay the gas bill on one house does not authorize the cutting off of the gas from the other.” Gaslight Co. v. Colliday, 25 Md., 1; Lloyd v. Washington Gaslight Co., 1 Mackey (D. C.), 331. Gas companies and telephone companies, being public service corporations, ai*e controlled by the same principles of law. It is shown by the testimony that the telephone company was fully notified that the amount of $3.10 was the amount due on Mrs. Hobart’s telephone, and for which she was liable; yet, notwithstanding this, it cut out the telephone in the dwelling anyway, which was unwarranted. A telephone company may cut out a subscriber for nonpayment of dues on reasonable notice, when the dues are not actually paid, but when they are paid, or when they are offered to be paid, it acts at its risk in refusing reinstatement of service when requested so to do.

The only other question necessary for us to consider is the question of the amount of damage. The jury in this case allowed the sum of $150, and we cannot say that their judgment was wrong in this matter. The law of damages, and what is proper to be allowed, must* largely depend upon the nature of the suit in which damage is sought to be recovered. It was impossible for Hobart to itemize each separate item of damage 'occasioned him by the removal of his telephone. The difficulty in doing this is manifest to every one. The telephone has come to he a necessity. It is the thing which completes the use of a home. It is resorted to daily, and hourly, to' such an extent-as to be regarded as indispensable, yet, when it comes to taking pencil and paper and calculating day by day what pecuniary value it- possesses, it is almost impossible. The inconvenience, the annoyance, and the trouble of being without one is a damage which no one can accurately estimate. It is such inconvenience. and annoyance as is only to be fully appreciated when one is deprived of its use; its loss is a. great and distinct damage, yet such damage as is not susceptible of exact measurement. When the telephone company undertook to out out the residence telephone because of the nonpayment of rent, Hobart was in default, and it had the right to do it. When appellant declined to reinstate it after having been offered the rental of the telephone in the dwelling house, it was its duty to reinstate it, and not having done so, it, should compensate Hobart for his pecuniary loss, and such inconvenience and annoyance in being wrongfully deprived of its use, as the jury thought proper under the facts. We do not say that damage for inconvenience and •annoyance may be recovered in all cases, but from the very nature of the subject-matter of this litigation, annoyance and inconvenience is one of the main elements of damages. In the case of Hewlett v. George, 68 Miss., 703 (9 South. Rep., 885 ; 13 L. R. A,. 682), this court held that “compensatory damages are not necessarily limited to actual money losses.” Again, in the case of Railway Co. v. Bloom, 71 Miss., 247 (15 South. Rep., 72), the court held that damage for discomfort 'and inconvenience might properly be considered as compensatory damages.

In the case of Shepard v. Milwaukee Gaslight Co., 82 Am. Dec., 681, when the question as to damage was that of compensation merely, the court said: “But it is said that .the court erred in the rule of damages. It told the jury that ‘the plaintiff, if entitled to a verdict, should have such damages as will compensate him for the pecuniary loss, and 'also- for the inconvenience and annoyance experienced by him in his'mercantile business arising out of the defendant’s refusal to furnish gas to the plaintiff.’ It, is 'claimed that this instruction gave the plaintiff punitive or vindictive damages. But, we think, this is clearly not so. The inconvenience and annoyance occasioned directly by the wrongful act or refusal of the defendant are always legitimate items in estimating the damages in actions of this kind. Vindictive damages are those which are given over and above all this as punishment for the other party. In actions for a nuisance, the damage usually consists almost entirely in inconvenience and annoyance. So, also, in many other actions of tort. In Ives v. Humphreys, 1 E. D .Smith (N. Y.) 201, the court says: ‘Even if the plaintiff be confined strictly to compensation for the injuries sustained by him, the jury are to determine the extent of the injury, and the equivalent damages, in view of all the circumstances of. injury, insult, invasion of the privacy, and interference with the comfort of the plaintiff and his family.’ And again: tEor an involuntary trespass, or a trespass committed under an honest mistake, the damages should be confined to compensation for the injury sustained by the plaintiff, and in estimating the amount of such damages, all of tlie particulars wherein the plaintiff is aggrieved may be considered, whether pecuniary loss, or pain, or insult, or inconvenience.’ ” We quote this case with approval as applied to this class of cases. When the telephone company undertakes to cut out its subscribers for debts which it claims to be due it, it may do,so'if the subscriber,actually owes it, but if the subscriber is not indebted to it, it is liable for such actual damage, inconvenience and annoyance as is occasioned him by its wrongfully cutting out his telephone.

The damage sustained by the loss of a telephone in its very nature is largely composed of inconvenience and annoyance. That a person deprived of the use of a telephone is materially damaged, all will concede. What is tlie amount of damage in dollars and cents cannot be accurately stated by the party suing for the reason that his damage consists not only in pecuniary losses, but it consists in inconvenience, discomfort and an annoyance, and it must be left to the jury to determine what is the damage sustained, taking into consideration the discomfort, the annoyance and inconvenience suffered, together with actual pecuniary losses. Would it be contended if one’s gas is wrongfully cut off that compensatory damage would be only what it would cost to buy tallow candles ? To so hold, and to -hold that .annoyance, discomfort and inconvenience was not a proper element of damage to be considered by a jury when the services of a telephone has been wrongfully discontinued, would be to place the public at the mercy of the telephone company, and force them to yield to many unjust demands rather than contest, for fear of a discontinuance of the service. Such coercive powers cannot be sanctioned.

We would imhesitatingly set aside a verdict of the jury where the amount allowed was grossly excessive or unreasonable, but wo shall be slow to interfere with their judgment’ when it is not so. The telephone may be considered a necessary household utility, so much so that the thought of losing it will coerce almost' any one into payment of any debt claimed within reason rather than have it cut out. It is a public service corporation without competition, monopolistic in nature, and the patrons have no choice but to accept its service, and they have not the privilege of selecting to do business with a competitor, because there is no competitor, and for this reason the rights of the public should be carefully guarded against oppressive methods used for the purpose of collecting unjust demands. The necessities of the law must meet modern conditions.

The action of the telephone'company was wrong, and it was not necessary for Mr. Hobart to pay the wrongfully demanded bill for the purpose of retaining the telephone in his* dwelling. If he had done this, it would have been necessary 'for him to sue for the recovery of the amount overpaid, and to require him to do this, in the language of the case of Wood v. Auburn (Me.), 32 Atl., 908 (29 L. R. A., 377), “would be a violation of the fundamental juristic principle of procedure. That principle is that the claimant, not the defendant, shall resort to judicial process.” This case is in perfect accord with the case of Cumberland Telephone Co. v. Baker (Miss), (37 South, Rep., 1012). In that case the telephone company had rendered the service, and the rental was properly due from Mr. Baker, but he claimed an unliquidated amount as damage for poor service,’and paid his bill less the amount so claimed by him, whereupon his telephone was discontinued, and the court held that he was not entitled to exemplary damages.

' We can find no reversible error in this cause.

Affirmed.

Case Details

Case Name: Cumberland Telegraph & Telephone Co. v. Hobart

Court Name: Mississippi Supreme Court

Date Published: Nov 15, 1906

Citation: 42 So. 349

Court Abbreviation: Miss.